Giddings

Eastman

June, 1839. the then existing statute of champerty and maintenance. Even though this agreement was made in and others Ohio, the lands lying in this state, the lex loci rei sitæ must prevail and govern the effect of the contract. and others. It is undoubtedly because Townsend supposed this agreement to be void, that his name was not used as complainant in the first place. It does not, at any rate, seem hardly proper, after the parties to the record have adjusted their litigation, to keep it alive for the benefit of a person situated in relation to the controversy as Townsend appears to be. As no advantage can accrue to either of the parties to the record by the further prosecution of this suit, I shall direct that the injunction be wholly dissolved, and the suit be adjudged to be discontinued; but inasmuch as the agreement provides that the complainants shall not be liable for any part of the costs, this order must be on payment of the costs of this suit by the defendants to the complainants, to be taxed.

NOTE.-The decision in this case was affirmed on appeal to the Chancellor.

EVANS US. VAN HALL.

Upon a motion to dissolve an injunction or ne exeat founded upon the defendant's answer, affidavits to sustain the bill and contradict the answer will not be heard.

Affidavits shewing that there has been a breach of the injunction by the defendant will be heard upon such motion, to enable the court to judge whether the defendant is in contempt.

Where E. was employed as the agent of a Land Company, and under contract to deliver up the books of the Company upon his ceasing to be agent, books of correspondence between the agent and the principal, or the attorney of the principal, are not such books, belonging to the Company, as are required to be delivered up upon his leaving the agency.

Such books are the private property of the agent, and are necessary June, 1839.

for his protection.

A bill is sustainable for the specific delivery of such books of correspondence, in favor of the agent entitled to the property therein and the possession thereof.

A decision upon a motion made by a defendant before answer, the conditions of which are not complied with by the defendant, does not prevent him from making a new motion after answer, and upon the answer for the same object.

A defendant, against whom there is prima facie evidence of being guilty of a breach of an injunction, cannot be heard upon a motion to discharge a ne exeat against him in the same cause, until he has purged himself of the contempt.

Especially if the breach of the injunction charged, is the removal of of the subject matter of the suit, from the jurisdiction of this court.

M. Taggart, for complainant.

B. Pringle, for defendant.

This was a bill filed

THE VICE CHANCELLOR. for the specific delivery of certain books of correspondence. Upon filing the bill the former Vice Chancellor allowed an injunction and ne exeat against the defendant.

A motion is now made to discharge the ne exeat upon the defendant's answer.

In opposition to this motion the complainant's counsel offered to read:

1st. Affidavits sustaining the bill, and contradicting some of the statements in the answer.

2d. The petition, affidavits, and order made by the former Vice Chancellor, upon the application of the defendant, allowing the defendant to go abroad upon his giving security, to be amenable to the process and orders of this court in relation to the subject matter of this suit.

3d. The affidavits of the complainant shewing a breach of the injunction in this cause by the defendant, and an attachment issued thereon.

Evans

V.

Van Hall

June, 1839.

Evans

V.

Van Hall

The court refused to hear the affidavits offered under the first head.

They permitted the papers offered under the second head to be read, to enable the court to judge whether the subject matter of this motion had been in effect previously decided by this court.

The court also permitted the papers offered under the third head to be read, to enable the court to judge whether the defendant was so far in contempt that he was disabled from making any motion until he had purged his contempt. The papers offered under the first head were therefore excluded; and those offered under the two remaining heads were received and read.

It appears from the pleadings that the complainant was the local agent of the Holland Land Company, residing at Batavia; that in the discharge of his duties as such local agent, he was bound to obey the instructions of John J. Vanderkemp, the general agent of the Holland Land Company, residing in Philadelphia; that during the agency of the complainant many letters passed between him and Vanderkemp, which the complainant procured to be bound in volumes, i. e. the originals of Vanderkemp's letters, and copies of his own; that Vanderkemp had counterparts of the same in Philadelphia, i. e. the original of Evans' letters and copies of his own. Upon the resignation of the complainant of such agency, the defendant was appointed a local agent in his place. The defendant came into the possession of the books of correspondence between the complainant and Vanderkemp. The bill and answer differ as to the mode in which he came into such possession. The complainant deemed that he was

Evans

V.

Van Hall

entitled to the possession of those books of correspon- June, 1839. dence, and demanded them of the defendant. The defendant refused to surrender them to the complainant. The complainant then brought a replevin suit to obtain possession of them; but the sheriff could not find them to make such delivery; and it does not appear from the papers that he arrested the defendant upon such replevin suit. The complainant then filed a bill in this court for the specific delivery of those books of correspondence, to the complainant, and obtained from the late Vice Chancellor an injunction and ne exeat against the defendant. The defendant gave bail upon the ne exeat, and before his answer was put in he presented a petition, praying that the ne exeat might be discharged, upon his giving sufficient surety to answer the bill of complaint, to render himself amenable to the process of this court during the progress of the cause, and also to such process as might be issued to compel a performance of the final decree therein. Upon this petition an order was made, in compliance of the prayer of the petition, that the ne exeat should be discharged upon the defendant's giving security according to the prayer of his petition, in the sum of $20,000. The defendant never gave the security required by this order. Subsequently the complainant presented his affidavits to shew that the defendant had been guilty of a breach of the injunction issued in this cause, and an attachment was issued thereon for such alleged breach of the injunction; but it does not appear to have been served, as the defendant could not be found. The defendant then causes his answer to be put in, and upon it moves for a discharge of

the ne exeat.

June, 1839.

Evans

V.

Van Hall

Upon this motion several questions arise:

1st. Whether the bill is sustainable, for the specific delivery of this correspondence.

2d. Whether the correspondence was the property of the complainant, or of the Holland Land Company.

3d. Whether the complainant had not an adequate remedy at law.

4th. Whether the ne exeat was properly issued in the first place.

5th. Whether the subject matter of this motion had not, in effect, been decided upon the defendant's former petition.

6th. Whether the defendant was so far in contempt that he could not make any motion.

Under the view that I take of the present motion, it is not necessary to decide the first four questions; but I have no objections that the parties should have the advantage of my opinion upon them all, except the fourth, which, however, will be given without any argument.

1st. I have no doubt a bill is sustainable for the delivery of this correspondence. Bills are sustainable for the specific delivery of articles of mere virtu or curiosity; for articles valuable for their antiquity, or cherished recollections connected with them, on the ground that no jury can give an adequate compensation in damages. It is also sustainable for partnership books. 2d. Story Eq. Jurisprudence, 18, 19. It seems to me a fortiori, if bills are sustainable for the specific delivery of articles of mere curiosity, that they should be sustained for the delivery of a correspondence like this, which may be the safeguard of a man's property and character.